As former President Donald Trump moves toward formally announcing his 2024 candidacy for another term in the White House, it’s becoming more and more obvious that he should be prosecuted for his attempts to overturn the 2020 election.
This isn’t something that should be undertaken lightly. Attempting to imprison a former president — especially one who is a leading candidate for the presidential nomination of his party — is something that should be reserved for the gravest circumstances. People will say that the rule of law requires presidents to be prosecuted just as any other citizen would be, but it really is more complicated than that.
The Justice Department says that it investigates crimes, not people, and that’s the way it should be. Nobody should want the Justice Department to be turned against the leaders of out-parties for offenses that would never have been charged against anyone else. The justice system depends on prosecutors using their discretion properly, so that the immense power of the government isn’t used to hound people over trivial or technical details, and that really needs to apply even more to political leaders — especially from the party that does not control the White House.
That’s why it’s so awful that Trump encourages chants to “lock up” his political opponents.
I’m also only somewhat impressed by arguments about deterring future presidents from committing crimes. It’s not clear to me that the possibility of prosecution and imprisonment would ever be the main thing keeping presidents from breaking the law. Political consequences are paramount to most presidents, who have spent most of their lives trying to reach the White House. Trump may not care that he was impeached twice and provoked the first-ever same-party conviction votes in the Senate, but if so he’s probably unique among presidents in that way. I suspect that Richard Nixon cared more that he was driven out of the presidency and politically humiliated than he would have been about a prison term.
And yet …
Trump didn’t commit ordinary crimes (well, he probably did, and that weighs on all of this too, but it’s not the main thing). He attempted to overturn an election that he had lost, and used the presidency to do so. That’s become clearer and clearer as the House committee investigating the assault on the U.S. Capitol of Jan. 6, 2021 has presented its case.
Experts seem to believe that the evidence is there and that conviction is likely for Trump’s efforts to pressure election officials to falsify results, to gin up slates of fake electors and to provoke the Capitol mob. And it’s highly relevant that Trump to this day, long after the election, continues to try to overturn the legitimate result. Prosecutors should take it into account if a person constantly takes to the biggest stages and in effect brags about his crimes and promises to commit them again if he has the chance.
The possibility that Trump supporters would respond to an indictment with violence or political sabotage should not constrain prosecutors. It’s one thing to work hard to preserve the ideal of equal justice under the law. It’s another to be cowed by extra-constitutional threats.
There’s a fair argument that the proper venue for all of this was Congress, and that impeachment, conviction and disqualification from holding further office would have been sufficient. But whether it’s correct or not, that ship has sailed.
If all of this sounds as if the ultimate decision by the Justice Department will be political in nature … well, that’s correct. Prosecutors have to balance the threat to the nation from indicting a former president against the threat to the nation of not doing so. Given the facts we’ve seen, it’s just not that hard a choice. Trump’s crimes are too important, and too dangerous, to ignore.
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ABOUT THE WRITER
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
